Amarnath Ghose vs Abhoy Kumar Singh and Others

Shearer, J.—This appeal arises out of an interlocutory order made by the learned Additional Subordinate Judge of Bhagalpur appointing a receiver of mortgaged property in proceedings in execution of a final decree for sale. The mortgage deed was executed on 19th May 1930 as security for the repayment of a sum ''of Rs, 11,50,000. A suit was instituted early in 1986 for the recovery of Rs. 16,58,000 which was then the amount due on the mortgage. Although there was no real defence to the suit it was contested by the defendants, and it was not until 8th April 1940, that a preliminary decree was passed for Rs. 28,49,000. An appeal against this preliminary decree was preferred to this Court and was dismissed. The final decree was passed on 24th October 1944, for a sum of Rs. 29,71,000-and an application to levy execution on this decree was made to the Court below on 21st November 1944.

The plaintiffs in the mortgage suit were apparently from the outset, apprehensive that they would be unable to realise the whole of the money due to them, as immediately after its institution, they asked that the defendants should be required to furnish security to the extent of six lakhs of rupees and that in default their property should be attached before judgment. In resisting this application the defendants said that average annual income from the mortgaged property while it had been under the management of the Court of Wards, had been Rs. 1,09,651-11-0. Subsequently, it appears the defendants were assessed to agricultural income tax on the assumption that the annual income was somewhat more, namely, Rs. 1,19,053-7-0. The interest due on the mortgage is now Rs. 1,75,000 annually. It is true that a Bench of this Court has directed further enquiry to be made in order to ascertain if the property has not a considerable potential or postponed value. Admittedly, however, if. there are minerals on the property, no one, as yet, has thought it worthwhile to negotiate, for a prospecting licence, still less, has any mineral been actually worked commercially. As to the trees, the income from them in the past has been quite inconsiderable. I do not wish in any way to prejudice the enquiry that is now going on,, but I feel bound to say, that when the largest income which has in the past ever been derived from the property is insufficient to pay off more than about 70 per cent, of the interest which accrues annually on the mortgage debt, a strong ''prima facie case has been, made out that the security is now altogether insufficient, Under the order of the Court below, as it stands, the receiver is apparently to pay the land revenue and other charges on the mortgaged property and presumably his own commission and is then to retain the balance of the rents and profits until the mortgaged property is sold and the Court gives further directions as to how they are to be dealt with. The reason why the learned Additional Subordinate Judge made an order of this kind was that it was vehemently contended on behalf of the mortgagors that the security was not inadequate, that the rents and profits belonged to them and that they should be in a position to take them as soon as a sufficient portion of the property, had been sold. I am inclined myself to think that whenever a receiver is appointed ''at the instance of a simple mortgagee the order of appointment should direct him, after paying the land revenue and other charges on the mortgaged property and the interest, as it accrues due, on the mortgage of the mortgagee at whose instance he is appointed and the interest on the other mortgages which have priority over his and his own commission, to pay the balance to the mortgagor or such other person'' as may be entitled to it. The defect in the order made by the Court below is not, however, in this particular case of any practical importance, as it is conceded that the income to be derived from the property is insufficient to pay the interest accruing annually on the mortgage debt and it will, in any case, be open to the mortgagors to ask the Court below to direct the receiver to make payments to the mortgagee in reduction of the interest. Beaumont C.J. in Damodar Moreshwar Phadke v. Bai Radhabai AIR (26) 1939 Bom. 54 thought it proper to allow the income to accumulate in the hands of the receiver until a sale took place. As the point was not argued before us and may not be altogether free from doubt I would refrain from modifying the Order in this quite minor particular.

Courtney-Terrell C.J. in Nrisingha Charan Nandy Chowdhry Vs. Rajniti Prasad Singh and Others, observed:

The right of an equitable mortgagee to have a Receiver appointed is based on his right to be put by the Court into the position of a legal mortgagee. The same difference therefore between a simple mortgagee under Indian law and a legal mortgagee under English law exists between a simple mortgagee and an equitable mortgagee.

and again:

An equitable mortgagee although he cannot like a legal mortgagee take immediate possession, has a contractual right to be put by the Court into the position of a legal mortgagee and it is this fact which is the ''basis of his equitable right to the appointment of a Receiver.

With the greatest respect I venture to think that as a matter of legal history, these observations are not strictly accurate and they are certainly apt to lead to confusion. Equity so far from endeavouring to put an equitable mortgagee in exactly the same position as a legal mortgagee, consistently strove to abate the rigour of the common law and assimilate the position of a legal mortgagee to that of an equitable mortgagee. To take but a single instance, equity intervened to restrain the legal mortgagee. from taking possession of the mortgaged property when he had covenanted not to do so till the borrower made default. In England at Common Law a mortgage was a conveyance of land...as a security for the payment of a debt or the discharge of some other obligation Santley v. Wilde 1899 2 Ch. 474. In consequence, a legal mortgagee was entitled to take possession of the mortgaged property and, if the income from the mortgaged property was sufficient, was in time enabled to recover the whole of his mortgage money and so put an end to the transaction between the mortgagor and himself. An equitable mortgagee, however, who obtained an order for a receiver, could never realise the whole of the money duo to him out of the rents and profits. See Strahan''s Law of Mortgages Edn. 2 page 154. The reason why he was unable to do so was that the receiver was invariably directed merely to keep down the interest on the mortgage debt and not to pay any part of the principal. It is true that if while a receiver was in possession of the mortgaged property, the mortgaged property was sold and the sale proceeds were, inadequate, the Court would direct any monies in the hand a of the receiver to be applied in reduction of any sum which was still outstanding: See Herbert v. Green 3 Ir. Ch. Rep. 270 a decision which has been relied on several occasions by the High Courts in India. An order appointing a receiver made by the Court of Chancery in England was an interlocutory order and its object was not primarily to enableihe mortgage-debt to be paid off but to preserve the mortgage security. Equity which looked to the substance of a transaction and not merely to its form regarded a mortgage, not as a conveyance, but as a mere contract of loans, and the mortgagor as continuing to be the owner of the mortgaged property and as entitled to the rents and profits so long as he remained in possession. Never the less, equity did not treat the mortgagor as being at liberty to deal with the property in any way he chose and would intervene at the instance of the mortgagee to protect his security. If a mortgagor in possession of-the mortgaged property committed waste equity would, in certain circumstances, intervene to restrain him by issuing an injunction. Similarly, if a mortgagor in possession neglected to pay the interest as it accrued due on the mortgage-debt for any considerable period, equity would deprive him of the possession of the mortgaged property and put it in the hands of a receiver. If a receiver, when appointed, paid the interest as it accrued due on the mortgage-debt out of the rents and the profits, that was a mere incidental result. The object of equity in putting the mortgaged property in charge of a receiver was primarily to protect the security. It is obvious that if the security was in a danger of being rendered inadequate by the continued omission of the mortgagor to pay the interest on the mortgage-debt, the only way in which its further deterioration could be prevented was not merely by putting the mortgaged property in charge of a receiver, but also by directing the receiver to keep down the interest out of the rents and profits. In this connection I may be permitted to. refer to Gasson and Hallagan Limited v. Jell 1940 1 Ch. 248. In that case an application for the appointment of a receiver by a mortgagee was refused on the ground that he was not seeking to proceed against the mortgaged property. It was there said:

This is not a case, where, on the face of it, there is any ground for suggesting that it is necessary to preserve the mortgaged property, because the plaintiffs are not seeking to get their remedy from it; they are seeking merely a personal remedy.

Again, I may refer to the observations of Beaumont C.J., in a decision already cited, Damodar Moreshwar Phadke v. Bai Radhabai A.I.R.1939 Bom. 54. That learned Judge in criticising an argument that a receiver should not be appointed at the instance of a simple mortgagee, said:

I am unable to see how the appointment of a receiver can affect anybody''s rights. The Court, when it appoints a receiver, merely, takes charge of the property which is the subject-matter of the suit in order to protect it until it is decided who is entitled thereto.

As long ago as 1890, the Bombay High Court in Jaikissondas Gangadas v. Zenabai 14 Bom. 431 decided that a Court had jurisdiction to appoint a receiver of mortgaged property at the instance of a simple mortgagee. When in 1938 this jurisdiction was questioned in Damodar Moreshwar Phadke Vs. Radhabai Damodar Ranade, Beaumont C.J. said:

It is somewhat astonishing to find this contention raised because this Court since the year 1890, when the decision in Jaihissondas Gangadas v. Zenabai 14 Bom. 431 was given, has I believed always considered that the Court has jurisdiction to appoint a receiver in the case of a simple mortgage.

The Calcutta High Court has consistently taken the same view. In Ghanshyam Misser v. Gobinda Moni Dasi 7 C.W.N. 452. Maclean C.J., observed that a mortgage suit was the class of suit in which, of all others, it is often most expedient and. necessary to appoint a receiver. Again Ashutosh Mookharjee J., in Mt. Khubsurat Kuer v. Saroda Char an Guha 16 C.W.N. 126 went so far as to say:

If the decree is for sale, and if it is established that the security is not sufficient to satisfy the judgment debt a Receiver will be appointed almost as a matter of course, especially if there has been default in the payment of interest.

In M. Paramasivan Pillai v. A.V.R.M.S.P.S. Ramasivami Chettiar AIR 1983 Mad. 570 a Full Bench of the Madras High Court has decided that, even when the right of a mortgagee to obtain a personal decree under Order 84, Rule 6, Civil P.C. has become barred by limitation be may still get in an order for the appointment of the receiver. The Lahore High Court has, on a number of occasions decided, that a receiver may be appointed at the instance of a simple mortgagee: Gobind Singh v. Punjab National Bank Ltd., Sheikhupura A.I.R.1935 Lah. 17. In this High Court Courtney Terrell, C.J. in the decision I have already referred to, Nrisingha Charan Nandy Chawdhury v. Rajniti Prasad Singh A.I.R.1982 Pat. 306 appears to have doubted whether a receiver could in such a case be appointed. It is, however, important to notice that Courtney-Terrell C.J. was there satisfied that the mortgage security was amply sufficient to satisfy the debt. Other considerations which weighed with him in setting aside the order appointing a receiver were that the rule of damdupat applied and that the property was in possession of a usufructuary mortgagee, who was, in any event entitled to the rents and profits. Fazl Ali J., as he then was, who was a party to this decision, later concurred with Sinha, J. in the view that in certain circumstances, it was open to a Court to appoint a receiver at the instance of a simple mortgagee: Hargopal v. Deoniti AIR 1946 Pat. 404.

Mr. P.R. Das, for the appellant, conceded that in view of these and other decisions which were cited at the bar, it was scarcely open to him to contend for the extreme proposition that the Court had no jurisdiction to appoint a receiver at the instance of a simple mortgagee. Mr. Das, however pointed out that a receiver could not be appointed unless it was just and convenient so to do and contend that it could never be just to appoint a receiver as under the contract between a simple mortgagee and his mortgagor, the mortgagor was entitled to continue in possession of the mortgaged property and appropriate the whole of the rents and the profits until the mortgaged property had been sold at a judicial sale and his legal title to it had devolved on the mortgagor or some one else. Mr. Das relied on the decision of their Lordships of the Judicial Committee in Sri Rajah Papamma Rao Bahadur v. Sri Vira Pratapa Korkonda H.V. Ramachandra Razu 23 I.A. 32 that was there decided was, however, that the remedy open to a simple mortgagee seeking to enforce his mortgage was a judicial sale and not foreclosure. In that case a decree had been passed putting the mortgagee in possession of the mortgaged property. It was contended by the mortgagee that this decree operated as a decree for foreclosure absolute and in consequence, he was the owner of the mortgaged property. On the other hand, it was contended by the mortgagor that it was still open to him to redeem the mortgage and this contention prevailed. At the close of his judgment Lord Hobhouse observed:

If indeed, the matter were new, it might reasonably be argued that the terms of a simple mortgage justify usufructuary possession; but long practice, now embodied in a statute, has settled that the remedy of the mortgagee is a judicial sale.

I understand this observation as meaning that, in the opinion of their Lordships of the Judicial Committee, if the Transfer of Property Act bad not provided for a judicial sale as the appropriate means of a simple mortgagee realising his security it would have been open to a Court to put him in possession of the mortgaged property so that he might pay himself the amount due under his mortgage out of the rents and profits. I cannot understand it as implying that a Court has no jurisdiction to remove a mortgagor from possession of the mortgaged property and put it in charge of a receiver, or even as implying that in such a case, the receiver may not out of the rents and profits keep down the interest on the mortgage. The argument put forward by Mr. P.R. Das, that under the contract between a simple mortgagee and his mortgagor, the mortgagor is entitled to continue in possession of the mortgaged property, until it has been sold in execution of a final decree, has on several occasions, commended itself to the Allahabad High Court. The earliest decision which was cited is Mata Badal Singh and Others Vs. Gourish Narain Singh and Another, which, however, is a very brief judgment and is not based on any earlier decisions either of the Allahabad High Court or any other High Court. I cannot regard the decision of Mootham, J. in Bireshwar Banerji v. Maharaja Sri Sudhansu Shekhar Singh Deo AIR 1947 ALL. 157 as any strong authority for the proposition advanced by Mr. P.R. Das. In fact, Mootham J. expressly refrained from expressing any opinion, as to whether the insufficiency of the security might be a ground for appointing a receiver. In the case with which he had to deal, all that was alleged was that interest was in arrear, and it is per-haps worth pointing out that the suit was instituted in the latter part of 1941 and interest had apparently been paid regularly until sometimes in 1940, the mortgage having been created in 1934. In an earlier decision, Anandi Lal and Others Vs. Ram Sarup and Others, Sulaiman C.J. had, however, set out in, if I may say so without disrespect, forcible language substantially the argument which has been put forward by Mr. P.R. Das. Sulaiman,. C.J. there said:

The view that the mortgagor should not continue to appropriate the income of the mortgaged property when the mortgage debt is not satisfied and interest is not being paid utterly ignores the terms of the contract between the parties. In the case of a simple mortgage the property is a mere security for payment of the money, and the mortgagor is entitled to appropriate the income until the property passes out of his ownership by sale. The mortgagee has no right whatsoever to the income of the mortgaged property, to the rents and profits, or to obtain possession of it before the mortgagor has lost his interest in it. This being the contractual relation between the parties, there is absolutely no point in contending that it is unfair that the mortgagor should appropriate the income while the interest is not being paid. In case of default the mortgagee''s remedy is to bring a suit for sale forthwith.

As against this, the mortgagor''s point of view may also be noted. He has a right to redeem the property up to the last moment. He is entitled to retain the rents and profits and appropriate the income its long as his equity of redemption has not been extinguished. Even when a suit for sale is brought and a preliminary decree is obtained, the Court is bound to give the mortgagor another chance to redeem the property, and is under a statutory duty to allow him time to redeem the mortgage and pay the mortgage-money within the time fixed. To appoint a receiver of his property so that he may not have the rents and profits with which to pay the mortgage-money would be ostensibly to give-him an opportunity to redeem the mortgage and yet really deny it by making it almost impossible for him to do so. The mortgagor has merely undertaken the liability that if he is not able to pay the money with, interest his property would be liable to be sold. He had never agreed that the mortgagee would either himself or through the Court dispossess him of the property before the procedure laid down for the realisation of the mortgage-money by sale has been gone through. For a Court to intervene and dispossess the mortgagor from the mortgaged property out of a regard for the mortgagee would be tantamount to inventing a new procedure to evade the provisions of Order 34, and forcing upon the mortgagor a new contract, never contemplated by him, which would have been more appropriate in the case of possessory mortgage.

The other decision on which Mr. P.R. Das for the appellants relied most strongly was a decision of a Bench of five Judges of the Rangoon High Court: Ma Hnin Yeik v. K.A.R.K. Ghettyar Firm AIR 1939 Bang. 821 . The line of reasoning in that case is very much the same as that adopted by Sulaiman, C.J. They said:

In other words, it can never be just and convenient to appoint a receiver for the sole purpose of taking possession of rents and profits unless they have been, expressly made part of the security for the debt by the instrument creating the mortgage.

Braund J. after referring to Section 58(b), T.P. Act, said:

It appears to me to be plain, beyond doubt, that what is given to the mortgagee is the right to look to the proceeds of sale of the property which forms the-security and no more.

And again.

Under a simple mortgage the right of the mortgagee is no more than a right to have the corpus of the mortgaged property sold by the process of a judicial sale and to look to those proceeds or his own reimbursement of principal, interest and costs. It is not even the property itself which forms the security in a strict sense. The actual security is the right to conversion into money o� the corpus of the property and the right to repayment out of the proceeds of that conversion. And the conversion contemplated by the Act is the sale of the property through the machinery of the Court. It appears to me to follow that until such a sale has been completed nothing emerges to which the mortgagee can look.

In Clause (b) and the clauses which follow it in Section 58, T.P. Act, an attempt is made to classify mortgages. Clause (b) must, however, be read in conjunction with Clause (a) which immediately precedes it and which defines a mortgage as the transfer of an interest in specific Immovable property. The mortgagor may remain the owner of the mortgaged property and &s such may be entitled to appropriate the rents and profits so long as he continues in possession but he is no longer free to deal with the property in any way he chooses. From the moment the mortgage is created his powers of ownership are curtailed by statute. Section 65A, T.P. Act, restricts his power to grant leases. Section 66 prohibits him from committing waste. If he commits or threatens to commit waste, the Court will intervene to restrain him by issuing an injunction. It is, I think, important to notice that it is not in every case that the Court will so intervene. It will do so only when the act or contemplated act of the mortgagor is likely to endanger the mortgagee''s security. In other words, Section 66 embodies the principle on which the Court of Chancery in England acted, see King v. Smith (1843) 2 Hare 239. If the Court is entitled to intervene when the mortgagee''s security is endangered by the mortgagor committing waste may it not similarly intervene when his security is endangered by the continued omission of the mortgagor to pay the interest on the mortgage debt as it falls due? As I have already said, the only effective way in which it can intervene in such a case is by putting the mortgaged property in charge of a receiver and directing the receiver to pay the interest as it falls due and so prevent 4he arrears of interest accumulating further. That the Indian legislature intended the Court to possess, and to exercise, such a power, is I think made quite clear by Clause (e) of Section 65 of the Act. That section states that, where the mortgage is a second or subsequent incumbrance on the property, the mortgagor is deemed to contract with the mortgagee that he will pay the interest from time to time accruing due on each prior incumbrance, as and when it becomes due, and will, at the proper time discharge the principal money due on such prior incumbrance. I am quite unable to understand why such a provision was inserted unless it was to enable a subsequent mortgagee to obtain an order for a receiver and to prevent an application by him for one being resisted on the ground that, as the interest on his own mortgage had been paid or was not heavily in arrears, there had been no breach of contract as between him and his mortgagor. It is scarcely necessary to point out that the security which a first mortgagee has for his money may remain adequate and he may be content to allow interest to accumulate and not ask for the appointment of a receiver, while the security of a subsequent mortgagee, even if he is paid the interest on his own mortgage as it falls due may be rendered quite inadequate by the omission of his mortgagor to keep down the interest on prior mortgages. The words "without delivering possession" in Clause (b) of Section 58 are merely descriptive of the kind of mortgage there defined. In England a legal mortgagee has always hesitated to take possession of the mortgaged property ever since equity decided that, if he took possession, he was to be regarded as occupying the position of a constructive trustee. If in England the legal mortgagee allowed the mortgagor to remain in possession, the mortgagor was entitled to appropriate the rents and profits and was regarded as the owner although his rights of ownership were curtailed in the same manner as they have been curtailed by statute in this country. A simple mortgagee, if he wishes to realise his security, must bring the mortgaged property to sale and if the sale proceeds are inadquate he is or may be entitled to proceed against other property of the mortgagor. To infer from this; however, that the mortgagee is entitled as of right, to the whole of the rents and profits down to the moment when the legal ownership of the mortgaged property is transferred from himself to some one else by an execution sale appears to me to be quite illogical. The contract of loan as I understand it, is fundamentally different and is that the ''mortgaged property shall answer to the fullest extent possible for the mortgage debt. The judgments of the learned Judges of the Rangoon High Court overlook the fact that a simple mortgagee has alternative causes of action; he may either sue to enforce his rights against the mortgaged property or he may sue on the personal covenant by the mortgagor. If the mortgagee chooses to sue on the latter causes of action and obtains a money decree, then, the only restriction in the way of his proceeding against the mortgaged property is that contained in Order 34, Rule 44, Civil P.C. that is, he cannot attach and sell the equity of redemption in the same manner as he can attach and sell other property of his judgment-debtor but must, as a condition precedent, obtain a final decree for sale, the object of this provision being to ensure that the mortgagor shall not be deprived of his right to redeem except in accordance with a procedure designed to give him every reasonable opportunity of recovering his property. While, however, in execution of a decree against the mortgagor personally for the mortgage-money, the equity of redemption cannot be sold, there is nothing to prevent the mortgagee from levying execution against any crops which the mortgagor may have raised on the mortgaged property or the rents and profits in general if it is practicable for him to attach them. Equally fallacious, in my opinion, is the argument that to put the mortgaged property in charge of a receiver, is to convert a simple into a usufructuary mortgage, The receiver may, perhaps, use the rents and profits to keep down the current interest but he cannot use them to pay off either the arrears of interest which have already accumulated or the principal. Moreover, the mortgaged property is sooner or later and sooner, if possible to be sold and property subject to a usufructuary mortgage cannot be sold. Mr. P.R. Das, for the appellants contended that a receiver ought not to be appointed when a final decree for sale had been passed, that to appoint a receiver was to interfere with the normal course of execution proceedings. Mr. Das relied strongly on a decision of Panckridge J., of the Calcutta High Court in Tolaram Champalal Vs. Jewanram Gangaram, . That however, was a case of an English mortgage and one of the grounds given for refusing a receiver was that the mortgagee might be under a strong temptation to delay bringing the property to sale. It further appears that the mortgagee had, at one time, been in a position to sell the property and had neglected to do so. Finally Panckridge J. seems to have thought that with due diligence on the part of the mortgagee, the property could be brought to sale within a comparatively short time as he gave leave to renew the application for a receiver four months or so after he passed his order rejecting it. It is always in the discretion of the Court to appoint or refuse to appoint a receiver and all that can be said is that, in the circumstances, of that particular case, the Court was of opinion that the application for a receiver was premature. The decision lends no support to the argument put forward by Mr. P.R. Das that any monies which may accumulate in the hands of a receiver cannot be reached by the mortgagee, unless and until he has obtained a peronal decree against the mortgagor and that to appoint a receiver in order that he may intercept and impound the rents and profits, is a device to evade the law. It is, of course, not open to a Court in a suit to recover money, to put the immovable property of the defendant in charge of a receiver so that, if the plaintiff succeeds, he may have little difficulty in realising the amount due to him under his decree. But the Court may take other action by way of demanding security or attaching the property of the defendant before judgment which have much the same effect as appointing a receiver. The rents and profits are not, as I have already shown, immune from all liability for the mortgage-debt and, for my own part I do not think it necessary for the mortgagee to obtain a personal decree under Order 84, Rule 6 before he can touch them. Once a receiver has been appointed, it is for the Court to issue directions to the receiver as to how the rents and profits are to be dealt with and they can and ought, I think, to be used to pay the interest as it falls due and to make up any deficiency in the proceeds of the sale. In England u/s 24, Conveyancing Act, 1881, a mortgagee now has a statutory right to the appointment of a receiver as soon as he has become entitled to sell the mortgaged property. The reason, presumably for this, is that as soon as it has been decided that the mortgaged property should be sold, a mortgagor in possession is under the strongest temptation to appropriate the whole of the rents and profits and pay nothing to the mortgagee during the interval which may elapse before a sale can be brought about which may be Considerable. To sum up, the provisions contained in the Transfer of Property Act impliedly confer on the Court power to appoint a receiver at the instance of a simple mortgagee and the only restriction on that power is that contained in Order 40, Rule 1, Civil P.C. namely, that it is just and convenient so to do. Pleteher-Moulton L.J. in Edwards and Co. v. Picard (1902) 2 K.B. 903 construed these words as meaning that "it is practicable and the interests of justice require it." In this particular case, no interest has been paid for many years; the interest which accrues due annually far exceeds the income and prima facie the security is now quite inadequate. The interest of justice, in my opinion, requires that any further deterioration in the security shout be prevented. By omitting to pay any interest at all for many years the mortgagors have been breaking their contract with the mortgagee and consistently pursuing a course of conduct which is, in the highest degree, unfair and inequitable. Moreover, this mortgage is not a simple mortgage, although in the deed it is described as one, but an anomalous mortgage. Clause 10 of the mortgage-deed empowered the mortgagee to sue in certain circum stances for arrears of interest without suing for the principle and asking for a decree for sale and Clause 13 states: "In case of suit upon this indenture it will be open and optional to the mortgagee to move the Court to appoint a receiver." The contract into which the parties entered, therefore, provided in the clearest possible terms, that, in the happening of a certain eventuality which admittedly, has now occurred, the mortgagee was "to be entitled to a receiver and so be enabled to have the rents and profits utilised to keep down the interest on the mortgage-debt.

The Court below was, in my opinion, fully justified in appointing a receiver and I would ac, cordingly, dismiss this appeal with costs. The hearing fed is assessed at ten gold mohurs.

Imam J.

I have had the advantage of reading the judgment which my learned brother proposes to deliver. Throughout the long litigation between the parties, it was always assumed that the mortgage in question was a simple mortgage. On that assumption, I intend to proceed to consider whether there is jurisdiction in a Court of law to appoint a receiver in the execution of the final decree obtained in a mortgage suit. Having regard to the decision of this Court in Hargopal v. Deoniti AIR 1946 pat. 404. I would conclude that the Court has jurisdiction. It was contended that in the said case, the circumstances did not require such a decision. Their Lordships, however, had very thoroughly examined the relevant authorities on the subject and had given their opinion that ordinarily a Court of justice should be disinclined to take the mortgaged property out of the possession of the mortgagor, who was entitled to continue in possession of the same, until ownership had passed out of his hands by a sale held in execution of the final decree in the suit. The receiver in such a suit, or in execution proceeding resulting from the decree in such a suit, could only be appointed in exceptional circumstances when a special case was made out for putting the property in charge of an officer of the Court. It was not practicable to lay down any hard and fast rule governing the circumstances in which a receiver in such a suit should be appointed. In my opinion, this view is correct, and one has to be extremely cautious before one appoints a receiver in such a suit. I bad at one time considerable hesitation in taking the view that the circumstances of the case before us justify the appointment of a receiver. I now, however, feel having regard to what my learned brother has stated, that I am not in a position to definitely express a contrary opinion. I would, accordingly, agree to the order proposed by my learned brother.